JUDGMENT
D.B. Dutta, J.
1. A suit was filed for eviction of a monthly premises tenant under the West Bengal Premises Tenancy Act on the ground of default in payment of rent. The suit was decreed. The judgment and the decree passed by the trial court were upheld In the first and the second appeals. The plaintiff decree holder put the decree into execution. The defendant Judgment debtor raised objection as to the executability of the decree by filing an application under section 47 CPC before the executing court The said application was registered as a Misc. case. The case that was sought to be made out in that Misc. case may be stated as follows. The description of the defendant in the plaint and the application for execution of the decree is wrong and as such, no decree could be passed in the suit and the decree is inoperative Inasmuch as the plaintiff decree holder did not take any step for rectification of the mistake. The decree was invalid and illegal for the following reasons. The decree has been obtained by practising fraud upon the court The suit not having been filed under any of the sub sections of section 13 of the West Bengal Premises Tenancy Act was not maintainable. The plaintiff’s claim for rent was not tenable inasmuch as nothing was due to the plaintiff from the defendant on account of rent particularly when the plaintiff withdrew the amount deposited with the court Moreover, if there was any lapse on the part of the defendant’s lawyer in making the deposit of rent payable by the defendant, the defendant
could not be allowed to suffer and as such, the decree for eviction was not legal. After the defendant filed an application under section 17(2), the rent in arrear was determined by the court and even after the defendant parted with the requisite amount, the said amount was not properly deposited for which the defendant filed an application before the trial court which was liable to be treated as a part of his application under section 17(2) but before the disposal of that application, the plaintiffs application under section 17(3) was heard. This procedure was not legal and as such, the Judgment passed by the trial court was not operative. The defandant was never a monthly tenant under the plaintiff in respect of the disputed property but that issue was not properly decided by the court. The real purport and significance of the provisions of sections 17(3) and 17(4) could not be placed before the court on behalf of the defendant and as such, the decree passed by the court was not legal. Since the defendant had deposited all the rent and the plaintiff has been withdrawing the same, he was not entitled to get any decree.
2. For the aforesaid reasons, the execution case was not maintainable and was liable to be dismissed.
3. The executing court initially preceded to take evidence that was being adduced on behalf of the defendant judgment debtor in the said Misc. case while the examination in chief of a witness of the judgment debtor was going on, the decree holder opposite party filed an application questioning the maintainability of the application under section 47 CPC and prayed before the executing court for adjournment of the taking of evidence and for fixing a date of hearing and deciding the question of maintainability raised by him. The court accordingly fixed a date for the purpose and upon a contested hearing, the executing court was pleased to reject the judgment debtor’s application under section 47 CPC on a finding that it was not at all maintainable in view of the fact that the very questions which were raised in that application on behalf of the Judgment debtor were raised and agitated during the trial of the suit and was finally decided against him by the trial court as well as the two appeal courts.
4. Against this order of summary rejection of the application under section 47 CPC, the judgment debtor preferred a revision under section 115A CPC challenging the legality of that order on the ground that the executing court was not justified in summarily rejecting the application under section 47 CPC without going into the merits and allowing the Judgment debtor to adduce evidence. The revisional court below found no jurisdictional error on the part of the executing court in summarily rejecting the application under section 47 CPC holding, inter alia, that the points that were raised on behalf of the judgment debtor in his application under section 47 CPC were all raised by and decided against him by the judgment and decree of the trial court which was upheld upto the second appellate stage and as such, the Judgment debtor was not entitled to reopen and agitate the matter before the executing court.
5. Hence the present application under Article 227 of the Constitution of India against the revlsional court’s order.
6. Mr. Sudish Dasgupta, the learned senior counsel appearing for the IDR petitioner made the following points. First, it was urged by Mr. Dasgupta that
the petitioner having virtually raised the question of mulllly of the decree in his application under section 47 CPC, the courts below were not Justified in summarily rejecting the application without going into the question as to whether the decree was a nullity. It was submitted that when a decree passed by a court is a nullity, its Invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Reliance has been placed on a decision of the apex court ‘in : Kiran Singh v. Chaman Paswan. Secondly, it was urged that by summary rejection of the petitioner’s application under section 47 CPC without allowing the petitioner to adduce hts evidence in full, the executing court virtually preceded to decide the execution case on a preliminary issue which was not permissible under the law in view of the fact that the provisions of sub rule (2) of Rule 2 of Order 14 of CPC authorising a court to dispose of a suit on a preliminary Issue under circumstances specified in clauses (a) and (b) of the sub rule (2) are not applicable to an execution proceeding Inasmuch as the provisions of section 141 CPC do not apply to execution proceeding. Reliance has been placed upon 18 CWN 343 : Hari Charon Ghosh v. Manmatha Nath Sen. Thirdly, by placing reliance upon the decision in : M/s. Woolways v. Central Bank of India, it was contended by Mr. Dasgupta that it is obligatory upon an executing court to decide a question under section 47 CPC judicially and not summarily and that if the parties wanted to lead evidence he ought to have allowed them an opportunity to do so and in the instant case, the courts below having virtually decided the objection on merits without, however, giving the judgment debtor any opportunity to lead evidence have commute illegalities and as such, the executing court should be directed to decide and dispose of the objection on merits after taking evidence. Finally, it was urged that according to Rules 776 of the Civil Rules and Orders of this court, an application under section 47 CPC is required to be registered as Misc. judicial case which is indicative of the fact that such a case requires a judicial inquiry. It is submitted that in view of this provision of CRO, the executing court was not competent to reject the application under section 47 CPC summarily as it did in the instant case.
7. Mr. Animesh Kanti Ghosal, the learned senior counsel appearing for the decree holder respondent sought to refute the above contentions in the following manner. The petitioner in his application under section 47 CPC did not at all plead any lack of inherent jurisdiction of the trial court to pass the decree under execution. As such, the question whether the decree was a nullity or not, did not really call for any adjudication by the executing court Mr. Ghosal submitted that the Supreme Court decision cited on behalf of the petitioner has absolutely no manner of application to the facts and circumstances of the present case. He, on the other hand, refers to a decision of the Supreme Court : V. D. Modi v. R. A. Rehman wherein it has been held that when the decree is made by a court which has no inherent Jurisdiction to make it. objection as to its validity may be raised in its execution proceeding only if the objection appears on the face of the record. But where the objection as to jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial
or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of Jurisdiction. Mr. Ghosal submits that the summary rejection of the application under section 47 CPC by the executing court is fully fortified by the above decision of the apex court. Mr. Ghosal further contends that by the 1976 amendment sub section 12) of section 47 CPC has been omitted with the result that the discretionary power of the court to treat an application as a suit or a suit as an application under section 47 CPC stands withdrawn. As such, the Jurisdiction of the executing court to decide the question of maintainability of the application under section 47 CPC as a preliminary point cannot be called in question. Reliance has been placed on a decision : Kulraj Singh v. Ranjit Kaur wherein it has been held that in view of deletion of sub section (2) of section 47 CPC by the Amendment Act of 1976 with effect from 1.2.1977 the court is no longer bound to treat an application under section 47 raising objections to the execution of a decree as a suit and that it could dispose of such objections summarily. Finally, it is submitted by Mr. Ghosal that the Judgment debtor petitioner did not raise any question in his objection under section 47 which he did not raise earlier in the suit and could not have raised in the suit for resisting the decree that was passed against him and as such, the question of going, into those very questions over again by the executing court cannot arise and there was really no legal scope for allowing any evidence to be led by the petitioner in support of that objection. It is submitted that the objection is wholly untenable in law and has been raised only to delay the execution of the decree and harass the decreeholder and that the executing court was well within its jurisdiction to summarily reject the objection. The present application, it is submitted. Is frivolous and is liable to be dismissed with costs.
8. The point for my consideration would be whether the Impugned order is required to be set aside In exercise of this court’s extraordinary jurisdiction under Article 227 of the Constitution and the executing court is to be directed to decide and dispose of the application under section 47 CPC after taking the evidence Intended to be adduced on behalf of the judgment debtor.
9. Rule 2 of Order 14 CPC, as amended by the 1976 Amendment reads as under :
(1) “Notwithstanding that a case may be disposed of on a preliminary issue, the court shall subject to the provisions of sub-rule (2), pronounce Judgment on all issues.
(2) Where issues both of law and fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the Jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being In force, and for that purpose may, if it thinks fit, postpone the settlement of the other Issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”
10. This rule evidently relates to suits. It is a well settled rule that in appealable cases issues arising in a suit should ordinarily be tried together and decided. The reason is to avoid piecemeal trial, protracted litigation and remand of the case where the appellate court differs with the decision of the trial court on the preliminary issue upon which the trial court has disposed of the suit. Sub rule (1) incorporates the normal rule recognized even under the un-amended rule that all the issues arising in a suit must ordinarily be tried together notwithstanding that a case can be disposed of on a preliminary issue. Sub rule (2) provides a limited exception to that ordinary rule of trial. Sub rule (2) furthermore is discretionary and not mandatory both In respect of the formation of the opinion that the case or a part of it can be disposed of by a trial as a preliminary Issue and as to its trial first on a preliminary issue. In view of the Division Bench decision reported in 18 CWN 343, section 141 CPC does not make applicable to proceedings in execution all the procedure provided by the court in regard to suits. The law laid down by this ruling does not appear to have undergone any change even after the 1976 Amendment. A determination under section 47 CPC was previously included within the definition of ‘decree’ contained in section 2(2) of the Code. Even then, such a decree was not appealable. After the 1976 Amendment, determination of any question within section 47 CPC does not come within the preview of a decree. By the 1976 Amendment, sub section (2) of section 47 has also been deleted. Sub section (2) was Introduced in this section in order to give legislative sanction to the practice followed by the courts in treating an application under this section as a suit or a suit as an application. But by reason of the deletion of sub section (2), the said discretionary powers have been withdrawn by the legislature. Now, all questions arising between the parties in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, should be disposed of under section 47 and not by a suit and an order made in such application is not a decree for which an appeal would lie. There is virtually nothing in the Code which makes it obligatory upon an executing court to decide an application under section 47 CPC on all issues at a time or to forbid the executing court to decide and dispose of the same on the question of maintainability even though no evidence is required to be gone into for the purpose of deciding the question of maintainability. The decree holder respondent has raised a question of jurisdiction of the executing court to go into the questions that have been raised in the instant application under section 47 CPC. In paragraph 6 of the decision and cited on behalf of the respondent, it has been held :
“A court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.”
In paragraph 7, the apex court further held :
“When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate,
is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record : where the objection as to the jurisdiction of the court to pass the decree does to appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no Jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of Jurisdiction.”
11. On a scrutiny of the grounds that are actually raised or sought to be raised in the application under section 47. It could not be disputed on behalf of the judgment debtor petitioner at the time of hearing that the very questions that are sought to be raised in the application under section 47 CPC were actually raised or ought to have been raised during the trial of the suit which culminated in passing of the decree which was upheld by both the first and the second appellate courts on a contested hearing. It is, thus, not understood how those questions could be permitted to be raised once again at the instance of the judgment debtor in the present execution case proceeding so as to displace the jurisdiction of the court which passed the decree. Lack of inherent jurisdiction of the court which passed the decree has not at all been pleaded anywhere within the four corners of the application under section 47 CPC. It has been alleged that the decree holder obtained the decree by practising fraud upon the court, but no particular of the alleged fraud has been set out in the application. The petitioner has even gone to the length of pleading non-existence of the relationship of landlord and tenant between him and the decree holder. It has been urged by Mr. Dasgupta that the petitioner has raised a substantial question of waiver on the part of the decree holder landlord by reason of the fact that he withdrew all the deposits that were made by the petitioner on account of rent. It is really not understood how withdrawal of any deposit made with the trial court could tantamount to any waiver. Even if it be so, that was undoubtedly a question which ought to have been raised by the Judgment debtor as defendant In the suit itself. On a scrutiny of the contents of the application under section 47 CPC, it cannot be said that the judgment debtor petitioner has raised an objection as to the Jurisdiction of the court which passed the decree and such an objection appears on the face of the record and does not require examination of the questions raised and decided at the trial or which could have been but have not been raised at the trial. That being so, the law laid down by the Supreme Court in V. D. Modi’s case (supra) fully applies to the present case and it must be held that the executing court will have no jurisdiction to entertain any objection as to the validity even on the ground of absence of jurisdiction. Then again, 3 In view of the decision reported In (Kulraj v. Ranjit) and cited on behalf of the decree holder respondent, it must be held that the court is no longer bound to treat an application under section 47 CPC raising objection to the execution of the decree as a suit and is quite competent to dispose of the objection summarily. Here is a case which warrants a summary rejection and I am afraid, the question of taking any evidence or allowing the petitioner to lead any evidence in
support of the points raised in the application cannot arise. The ruling (M/s. Woolways v. Central Bank of India) and cited on behalf of the petitioner cannot have any manner of application here inasmuch as under section 47 CPC, the court is to decide all questions relating to the execution, discharge and satisfaction of the decree and satisfaction is a question of fact which was very much pleaded in the reported case. As such, the executing court was required to go into the merits of that matter and decide that dispute in a Judicial manner by allowing the parties to lead evidence. Here in the instant case, no question relating to any satisfaction or discharge or execution has been raised so as to justify the need for leading of evidence.
Rule 776 of the CRO requires an application under section 47 CPC to be registered as Misc. Judicial case only because of the fact that it is supposed to Involve a Judicial inquiry. It does not warrant a conclusion that whenever an application under section 47 CPC is filed by the Judgment debtor and the Judgment debtor wants to lead evidence, the executing court is bound to take evidence irrespective of the nature and character of the grounds raised in that application and irrespective of the fact that the grounds raised do not require any evidence to be substantiated or for that matter, there is no scope for adducing any evidence.
12. Thus, giving the matter my anxious consideration I am convinced that the application under section 47 CPC was harassing and vexatious and did not merit any consideration. In such view of the matter, it must be held that the executing court was quite justified in summarily rejecting the application under section 47 CPC and the revisional court below was also justified in refusing to interfere with that rejection. In the result, the present application under Article 227 fails miserable. The application is accordingly dismissed with costs assessed at 200 Cms.
13. Application dismissed